Afternoon Must-Read: Jonathan Chait: Obama’s Moment of Environmental Decision

Jonathan Chait: Obama’s Moment of Environmental Decision: “On June 2, President Obama will personally announce new Environmental Protection Agency regulations on existing power plants…

which will be the policy centerpiece of his second term. Nobody knows how these rules will work or how ambitious they will be…. He wants them to effectively reduce carbon pollution, he wants them not to cost consumers too much, and he wants to be sure they can survive legal challenge. The trouble is that he can only pick two of these. And the primary question weighing on administration regulators as they make their decision will be how to read the mind of Anthony Kennedy…. The Natural Resources Defense Council… [proposes] a regulatory scheme that would mandate that every state reduce its emissions…. The NRDC plan is clever because it allows every state to find the most cost-effective way to meet its emissions targets…. It has all the market-based benefits of cap-and-trade, in other words. The risk is that… it leans on defensible but untested applications of the Clean Air Act. If the Supreme Court decides to invalidate the plan, he’ll be left with nothing. The alternatives would be either to write a weak regulation… or… an extremely strong regulation that imposes very high dislocation costs on states that rely heavily on coal-powered electricity. Both… would… run less risk of being overturned. Effective, legally safe, and cheap–Obama has to pick two. The legal risk can itself be boiled down to the risk that Anthony Kennedy, the Supreme Court’s swing justice, will overturn the regulations…. Kennedy… had a prominent role in the Supreme Court case that authorized the EPA to regulate carbon dioxide, which might make him hesitant to slap down the agency for carrying out his ruling. He has continued to display a preference for regulations that meet his own sense of practicality…. The mysterious workings of the mind of Anthony Kennedy have perplexed a generation of legal scholars. In this case, the outcome may literally determine the fate of the world.